American justice system goes on trial

When Khalid Sheikh Mohammed walks into a federal courtroom in the coming months, the American justice system will also be on trial.

After years of the Bush administration subverting the justice system, Attorney General Eric Holder announced the Justice Department would prosecute the self-avowed mastermind of the 9/11 attacks in a New York courtroom, just a few blocks from Ground Zero.

Under most circumstances, Mohammed should be tried by a military tribunal. A long line of legal precedents justify the use of a tribunal, but this is not most circumstances.

For the first time since 9/11, Americans will have to admit they allowed the rule of law to devolve into the rule of a few men, and that a new legal framework needs to be established for prosecuting terrorists.

Critics of Holder’s decision contend that a public trial will act as a propaganda tool for Mohammed to espouse radical views while the family members of 9/11 victims are forced to relive the day when the towers fell. This cacophony of largely baseless claims highlights how emotion and ideology have permeated the court system, placing the rule of law in jeopardy.

The sole criticism that deserves debate concerns the venue. Rather than succumbing to fears of another attack, Americans should question whether Mohammed can receive a fair trial in New York.

Many other terrorists have been tried and convicted in federal court. Sheik Omar Abdel Rahman was tried in New York for his involvement in a plot to blow up the United Nations and several New York bridges and tunnels in 1995. At that time, surveys of prospective jurors indicated that a New York jury could be just as impartial as one anywhere else.

Any attempt to move the trial must be grounded in legal reasoning rather than emotion. As much as it pains me to say this, the victims’ families should have no influence determining the location of the trial.

No matter where the trial is held, convicting Mohammed will be a monumental undertaking, largely due to the Bush administration’s handling of detainees.

While incarcerated at Guantanamo Bay, Mohammed was waterboarded 183 times, making his subsequent confession inadmissible in court. Mohammed’s defense attorney could also claim that his client’s right to a speedy trial was violated.

In what may be one of the highest-profile trials of the century, the prosecution will have to reaffirm constitutional protections that were abandoned in the wake of 9/11. The fundamentals of our democracy were abandoned in pursuit of expedience during the Bush administration – an unacceptable compromise of American values.

The 2006 Military Commissions Act provided the president absolute power for discerning enemy combatants, creating a 20th century mindset for dealing with 21st century problems. Waging a “war on terror” in which there is no discernible enemy does not grant the president the right to be judge and jury as he sentences both innocent citizens and actual terrorists to prison.

In the 1863 Supreme Court case Ex Parte Milligan, the court ruled that the suspension of habeas corpus did not grant President Abraham Lincoln the right to try citizens before military tribunals, stating, “The Constitution of the United States is a law for rulers and people, equally in war and peace.”

Granted, the defendant in Ex Parte Milligan was a U.S. citizen. Properly defining the defendants as enemy combatants or unlawful combatants should be the real issue of contention.

As borders erode and the nation-state becomes increasingly irrelevant due to globalization, previous definitions of enemy combatants established in cases such as Ex Parte Quirin – which has been used to justify trying unlawful combatants by Military Commissions – are becoming just as irrelevant.

It is vital to preserve the limited rights of unlawful combatants, so the rights of every American citizen endure. Those who would rather see Mohammed tried in a makeshift military court appear willing to sacrifice their liberties for the sake of vengeance. There is a time and a place for military tribunals, and this is not it.

The nation was irreversibly altered on 9/11, but our institutions remain just as capable of maintaining justice as they did before lower Manhattan was engulfed in burning ash and smoke. A public trial is not only legally sound but imperative.

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